specially concurring:
I concur in the result, but not with the reasons relied upon by the majority to support the result. I disagree with the court’s holding that a criminal defendant’s right to testify on his own behalf is a fundamental constitutional right. I also do not agree with the procedure set forth in the majority opinion for advising a defendant of his right to testify.
I.
The majority reasons that because we have ruled previously that the right to testify may only be waived by a defendant in a criminal case, it follows that the right to testify is a fundamental constitutional right. People v. Layton, 200 Colo. 59, 612 P.2d 83 (1980); McClendon v. People, 174 Colo. 7, 481 P.2d 715 (1971). I disagree *518with the majority’s logic. Certain constitutional rights have been held to be so fundamental that they may only be waived by the defendant and not by his counsel. E.g., State v. Albright, 96 Wis.2d 122, 291 N.W.2d 487, cert. denied, 449 U.S. 957, 101 S.Ct. 367, 66 L.Ed.2d 223 (1980). But it does not follow that the opposite is mandated. Our past rulings requiring that waiver of the right be personal do not compel us to now hold that the right to testify is a fundamental constitutional right.
My view is supported by the Wisconsin Supreme Court decision in State v. Albright, supra, which declared:
“We are not convinced that the right to testify falls within this category of ‘fundamental’ rights, which can only be waived in open court on the record by the defendant.”
291 N.W.2d at 490-91. The right to testify is a constitutional right in Colorado, but not a fundamental one. People v. Chavez, 621 P.2d 1362 (Colo.), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981).
Independent reasons for finding the right to testify to be a fundamental constitutional right in the view of the majority include: (1) the importance of the right in determining a defendant’s fate; (2) the defendant’s right to tell his side of the story; and (3) the importance to the defendant of becoming an active participant in his trial by exercising the opportunity to be heard. While these are all important attributes of the constitutional right to testify, they do not cause the right to rise to the level of a fundamental right with the attendant procedural safeguards.
Our court today and the Wisconsin Supreme Court are the only jurisdictions to squarely address the issue of whether the constitutional right to testify rises to the level of a fundamental constitutional right. But see Wright v. Estelle, 572 F.2d 1071 (5th Cir.) (Godbold, J., dissenting), cert. denied, 439 U.S. 1004, 99 S.Ct. 617, 58 L.Ed.2d 680 (1978) (dissenting judge argues right to testify is fundamental). The majority in footnote 10 lists jurisdictions which have “characterized” the right to testify as fundamental; however, a careful reading of the cases reflects that these jurisdictions have not squarely addressed the issue. The majority declares the right of a defendant to testify to be a fundamental right and establishes a panoply of procedures to protect that right.
II.
The United States Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), held that the waiver of a fundamental constitutional right requires, not only a personal waiver by the defendant, but that the waiver must be an intentional relinquishment of a known right or privilege.
The majority imposes a requirement that the waiver be on the record and mandates a long litany for a trial judge to follow in advising a defendant of his right to testify. The trial judge must:
“[A]dvis[e] the defendant outside the presence of the jury that he has a right to testify, that if he wants to testify then no one can prevent him from doing so, that if he testifies the prosecution will be allowed to cross-examine him, that if he has been convicted of a felony the prosecutor will be entitled to ask him about it and thereby disclose it to the jury, and that if the felony conviction is disclosed to the jury then the jury can be instructed to consider it only as it bears upon his credibility. In connection with the privilege against self-incrimination, the defendant should also be advised that he has a right not to testify and that if he does not testify then the jury can be instructed about that right.”
People v. Curtis, 681 P.2d 504 at 514 (Colo.1984) (footnote and citations omitted). The majority reasons that the procedure is required to find an intentional relinquishment of a known right or privilege.
Absent a finding that a defendant’s right to testify is a fundamental constitutional right, there is no reason to impose the requirements of Johnson v. Zerbst, supra, and the mandatory procedure set forth by *519the majority. State v. McKinney, 221 Kan. 691, 561 P.2d 432, 435 (1977), supports my conclusion:
“[T]he record does not have to affirmatively show a waiver of every constitutional right or privilege.... Here the accused after full consultation with his counsel decided not to testify [o]n his own behalf. No inquiry from the trial court was necessary or appropriate.”
(Emphasis supplied). See also United States v. Ives, 504 F.2d 935 (9th Cir.), vacated on other grounds, 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1974); People v. Mosqueda, 5 Cal.App.3d 540, 85 Cal.Rptr. 346 (1970); State v. Hutchinson, 458 S.W.2d 553 (Mo.1970). Without finding the right to testify to be fundamental, each of these cases rejected a requirement that the trial judge advise the defendant of the right.
In State v. Albright, 96 Wis.2d 122, 291 N.W.2d 487, cert. denied, 449 U.S. 957, 101 S.Ct. 367, 66 L.Ed.2d 223 (1980), Wisconsin declined to require trial judges to advise a criminal defendant of the right to testify. The Wisconsin court was concerned that such a rule would interfere with the attorney’s right to advise his client, and said:
“We decline to recommend that a trial judge, sua sponte advise, a defendant of the right to testify. Such admonition is subject to abuse in interpretation and may provoke substantial judicial participation that could frustrate a thoughtfully considered decision by the defendant and counsel who are designing trial strategy-”
291 N.W.2d at 493.
My concern is precisely that which the Wisconsin court addressed. It is the duty of defense counsel to advise the defendant of the right to testify and the impact of that decision. The procedure recommended by the majority would unduly interfere with the attorney-client relationship and would cause every criminal case in which a defendant does not testify to take on a new dimension. The procedure assumes that defense counsel has not properly represented his client by advising him of his right to testify. Such a procedure intrudes upon and tends to disrupt the attorney-client relationship.
Verification by the trial judge, when the issue is presented, should be made on the record and out of the presence of the jury. I believe Judge Kirshbaum in People v. Palmer, 631 P.2d 1160, 1162 (Colo.App.1981) (Kirshbaum, J., dissenting) correctly analyzed the issue:
“In the event of any conflict between a defendant’s desire to testify and an attorney’s advice to the contrary, the defendant must be permitted to exercise his right.... When a trial court is informed that such a conflict has developed, the court has an independent obligation to explain this right to the defendant and to verify that defendant has waived the right.”
The facts in the cases before us may require the same result whether the procedure set forth in the majority opinion or in this special concurrence is followed. In Curtis, the defendant’s attorney may have made the decision as to whether the defendant would testify, but the defendant’s conduct may establish a waiver of his right to testify. The defendant and not the attorney must make the decision. People v. Layton, 200 Colo. 59, 612 P.2d 83 (1980); McClendon v. People, 174 Colo. 7, 481 P.2d 715 (1971). In Jones, the defendant was adequately informed of his right to testify and effectively waived his right. Nothing more is required.
Accordingly, I concur in the result.